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Page: 25vii)New Brunswick v. Potash Corporation of Saskatchewan Inc.[96] As will be discussed below, there have been calls in recent years for the Supreme Court ofCanada to revisit the issue of mandatory retirement. This was explicitly recognized by the Courtitself in New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc.,2008 SCC 45, [2008] 2 S.C.R. 604.[97] The Supreme Court left the door open for a reconsideration of mandatory retirement in theappropriate case: at para. 4. However, the facts of the Potash case did not present the proper2011 FC 120 (CanLII)opportunity for such a reconsideration, as no constitutional challenge had been made to the relevantprovision of the New Brunswick Human Rights Code, R.S.N.B. 1973, c. H-11.B. Why the Supreme Court’s Decision in McKinney does not Determine the Result of thisCase[98] Air Canada and ACPA argue that the Supreme Court’s decision in McKinney was bindingon the Tribunal, and, as such, should have dictated a finding that paragraph 15(1)(c) of the CHRAwas saved by section 1 of the Charter. According to Air Canada and ACPA, there are no factual orevidentiary differences in this case that are sufficiently material as to justify a different conclusionon the section 1 issue.[99] The applicants contend that the only real change that had taken place between the time ofthe Supreme Court’s decision in McKinney and the hearing before the Tribunal in this case was thatmandatory retirement had been abolished in Ontario, a development that occurred after thetermination of Messrs. Vilven and Kelly’s employment with Air Canada. This single developmentdid not, in the applicants’ view, permit the Tribunal to refuse to follow McKinney.